RE JAGTAR SINGH

CACV 260/2021

[2022] HKCA 1580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 260 OF 2021

(ON APPEAL FROM HCAL NO. 2681 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

1.  On 10 February 2022, this Court handed down the judgment ([2022] HKCA 209)  dismissing the applicant’s application to appeal an order of Deputy High Court Judge K W Lung given on 12 May 2021 who refused his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 22 April 2022, the applicant filed a notice of motion applying for leave to appeal out of time against this Court’s judgment to the Court of Final Appeal.  The applicant did not lodge any written submission despite directions given by the Registrar of Civil Appeals.  

3.  We see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  Therefore, we shall proceed to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out at [3] in our judgment.  We shall not repeat them here.

5.  Under section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (Cap. 484), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5)  further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal. 

6.  Good grounds have to be shown by the applicant for the Court to grant an extension of time.  The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at [1.4]).

7.  Section 22(1)(b)  of the HKCFAO further provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

8.  We note that the Court registry was temporarily closed due to the COVID-19 pandemic during the general adjournment period between 7 March 2022 and 11 April 2022.  The Court registry has resumed operation since 12 April 2022. 

9.  Therefore, in accordance with section 71(1A)(a)  of the Interpretation and General Clauses Ordinance (Cap. 1), the deadline for the applicant to file his notice of motion should fall on 12 April 2022 when the Court registry was reopened.

10.  The applicant was late for over a week and his explanation in his affirmation was that he was unaware of the court procedure.  However, this is unacceptable as ignorance of court rules does not constitute good ground for the Court to grant an extension of time.

11.  In any event, the applicant’s grounds of appeal stated in his notice of motion, which appears to be copied from some proforma seen often in these types of proceedings, are devoid of merits as these are merely bare assertions without any particulars or elaborations.  They simply state the following :

‘ 1. The learned Judges were wrong as a matter of law for not having applied the principles of procedural fairness to the decision of the director whereby the director was required to give reasons justifying the decision.

2.  The learned Judges were wrong as a matter of law for not having applied the principles of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3.  There is some error in law in my decision.  The decision maker just relied on COL [sic] information [and] my previous facts, which were favor on rejecting my claim.

4.  The facts that the decision maker has not considered all aspects that are relevant to my case is an error in Law and is therefore of great general or public importance.

5.  Actual life occur different situation then mentioned COL [sic] information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

6.  The Judge did not apply the law properly & Procedural unfairness.

7.  I further want to explain that my life is in danger in my country.  I would be killed or harmed if I return back to my country.’

12.  In the circumstances, we are of the view that the grounds put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

13.  We further do not see any basis for leave under the ‘or otherwise’ limb under section 22(1)(b).

14.  As the statutory requirements for giving leave to appeal are not met, accordingly, we dismiss the notice of motion dated 22 April 2022.